Part 4 Grant of transferable land as Aboriginal land
Part 4 Grant of transferable land as Aboriginal land
Division 1 Grant of land
38 Deeds of grant to be prepared
(1) The chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands.
(2) Transferable land need not be surveyed but may be described in a deed of grant in such manner as the Minister directs.
(3) The deed of grant must show that the land is held by the grantee—
(a) if the grantee is a registered native title body corporate appointed as the grantee under section 39—for the native title holders of the land; or
(b) otherwise—
(i) for the benefit of Aboriginal people particularly concerned with the land and their ancestors and descendants; or
(ii) if the land is prescribed DOGIT land that is to be held for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land—for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, and their ancestors and descendants.
(4) If the grantee is a registered native title body corporate appointed under section 39, the deed of grant also must include information to identify the native title holders of the land.
(5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice.
[s 39]
Aboriginal Land Act 1991
Part 4 Grant of transferable land as Aboriginal land
39 Appointment of registered native title body corporate as grantee to hold land for native title holders
(1) This section applies to transferable land if—
(a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and
(b) there is a registered native title body corporate for the determination.
(2) The Minister may, with the consent of the registered native title body corporate, appoint the body corporate to be the grantee of the land under a deed of grant prepared under section 38.
(3) If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a).
(4) In considering whether to appoint a registered native title body corporate under this section, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example—
(a) whether the making of the proposed appointment was a matter relevant to the native title claim under the Commonwealth Native Title Act that resulted in the determination that native title existed in relation to all or a part of the land; and
(b) whether any Aboriginal people particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed appointment; and
(c) if the Minister is satisfied Aboriginal people particularly concerned with the land will be adversely affected by the proposed appointment—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people.
[s 40]
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land
40 Appointment of grantee to hold land for benefit of Aboriginal people
(1) This section applies if the Minister does not appoint, under section 39, a registered native title body corporate as the grantee of land.
(2) The Minister may appoint as grantee of the land—
(a) a CATSI corporation that is qualified to hold the land; or (b) a land trust.
(3) However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as the grantee of the land under subsection (2) only if—
(a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land and the CATSI corporation is the registered native title body corporate for the determination; or
(b) a determination has not been made under the Commonwealth Native Title Act that native title exists in relation to all or a part of the land, but the Minister is satisfied it is appropriate in all the circumstances to appoint the CATSI corporation as the grantee of the land.
Examples of when it is appropriate to appoint the CATSI corporation as the grantee of the land—
1 The appointment of the CATSI corporation is supported by consultation with Aboriginal people particularly concerned with the land.
2 The land is within the external boundaries of an area of land the subject of a native title determination and the CATSI corporation is the registered native title body corporate for the determination.
3 An ILUA has been entered into for the land and the CATSI corporation is nominated in the ILUA as the proposed grantee for the land under this Act.
4 Anthropological research supports the CATSI corporation as being the appropriate grantee.
[s 41]
Aboriginal Land Act 1991
Part 4 Grant of transferable land as Aboriginal land
(4) Before making the appointment, the Minister must consult with, and consider the views of, Aboriginal people particularly concerned with the land.
(5) Subsection (4) does not apply if an ILUA has been entered into for the land and the entity is nominated in the ILUA as the proposed grantee for the land under this Act.
(6) However, in considering whether to appoint an entity nominated in an ILUA as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example—
(a) whether any Aboriginal people particularly concerned with the land may be adversely affected by the appointment; and
(b) if the Minister is satisfied any Aboriginal people particularly concerned with the land will be adversely affected by the appointment—any action the entity intends to take to address the concerns of the Aboriginal people.
(7) Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example, the matters mentioned in section 39(4)(b) and (c).
(8) In appointing a grantee of land under this section, the Minister must have regard to any Aboriginal tradition applicable to the land.
41 Procedure for appointing particular grantee
(1) Before appointing a grantee of land under this part, other than an entity nominated in an ILUA as the proposed grantee for the land, the Minister must—
(a) publish notice of the Minister’s intention to appoint the grantee in a newspaper or other publication circulating
[s 42]
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land
generally in the area in which the land the subject of the deed of grant is situated; and
(b) consider all representations made to the Minister under subsection (4).
(2) The notice must—
(a) include a description of the land; and (b) state the following—
(i) the name of the proposed grantee;
(ii) that an Aboriginal person particularly concerned with the land may make written representations to the Minister about the proposed appointment;
(iii) the place where the representations may be made;
(iv) the period in which the representations must be made.
(3) The stated period must end at least 28 days after the notice is published.
(4) An Aboriginal person particularly concerned with the land may make written representations about the proposed appointment to the Minister within the stated period.
42 Minister to act as soon as possible
(1) The Minister must, as soon as practicable after the commencement of sections 38 and 40, give all necessary directions under section 38, and make all necessary appointments under section 39 or 40, in relation to land that is transferable land on the enactment day.
(2) If, under section 10(1)(c) or 12, land becomes transferable land after the enactment day, the Minister must, as soon as practicable after the land becomes transferable land, give all necessary directions under section 38, and make all necessary appointments under section 39 or 40, in relation to the land.
[s 42]
Aboriginal Land Act 1991
Part 4 Grant of transferable land as Aboriginal land
(3) However, the Minister need not act as mentioned in subsections (1) and (2) in relation to land until the Minister is reasonably satisfied—
(a) arrangements are in place to ensure—
(i) the Commonwealth and the State can continue to provide services to communities on the land after it is granted; and
(ii) the local government for the area in which the land is situated can continue to provide local government services to communities on the land after it is granted; and
Example of an arrangement for paragraph (a)—
a lease
(b) if the land is proposed to be granted to an entity other than a registered native title body corporate, arrangements that the Minister considers necessary—
(i) to support use of the land by Aboriginal people particularly concerned with it; and
(ii) to ensure appropriate services, including, for example, social housing, public works and community infrastructure, can be provided for communities on the land;
are in place to deal with matters relevant to the use of the land after it is granted; and
Example of an arrangement for paragraph (b)—
an ILUA
(c) if the land is or includes township land, arrangements are in place to provide for—
(i) the land to continue to be used as township land;
and
(ii) residents of the township land to continue to live on and access the land, and obtain tenure over the land under this Act.
[s 43]
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land
Examples of an arrangement for paragraph (c)—
an ILUA, a townsite lease or another lease
(4) In this section—
local government services includes any services a local government might ordinarily provide for the community in its local government area.
43 Authority to grant fee simple in transferable land
The Governor in Council may, under this Act and the Land Act, grant transferable land in fee simple.
44 Deed of grant takes effect on delivery
(1) A deed of grant prepared under this division takes effect on the delivery of the deed of grant to the grantee.
(2) On delivery of the deed of grant to the grantee, the land the subject of the deed becomes Aboriginal land that is transferred land.
(3) Subsection (1) has effect despite any other Act or any rule of law or practice.
45 Existing interests
(1) If transferable land was, immediately before becoming Aboriginal land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement.
(2) Without limiting subsection (1), if transferable land was, immediately before becoming Aboriginal land under this division, the subject of—
(a) a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act; or
(b) a lease under the Land Act; or (c) a trustee (Aboriginal) lease;
[s 45A]
Aboriginal Land Act 1991
Part 4 Grant of transferable land as Aboriginal land
the trustee of the land is, by operation of this section, substituted for the lessor as a party to the lease.
(3) The terms of a lease mentioned in subsection (2) are not affected by the operation of this section or any other provision of this Act and, for the purposes of those terms, the Land Act continues to apply to a lease under that Act, with all necessary modifications and such modifications as are prescribed, as if the lease continued to be such a lease and the trustee of the land were the lessor.
(4) However, subsection (5) applies to an interest in transferable land (the previous interest) that, under an available State land agreement, is to cease on the grant of the land under this part and a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land.
(5) Despite subsections (1) to (3), on the grant of the land the previous interest ceases.
(6) Subsection (5) applies despite any other Act.
(7) In this section—
interest includes—
(a) native title; and
(b) a right of a local government to access, occupy, use or maintain a facility on the land; and
(c) an interest in favour of the State or Commonwealth other than an interest that is not registered.
45A Existing interests held by local government
(1) This section applies if a local government has an existing interest under section 45 to access, occupy, use or maintain a facility on Aboriginal land.
(2) If the local government does not intend to continue to access, occupy, use or maintain the facility, the local government must give the trustee of the land notice of that fact.
[s 47]
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land
(3) If subsection (2) does not apply, the local government and the trustee of the land must use their best endeavours to provide for the continued access, occupation, use or maintenance of the facility under a registered interest in the land given by the trustee of the land.
47 Cancellation of deed of grant in trust
(1) This section applies if a deed of grant (the new deed) over all or part of the land comprised in a deed of grant in trust takes effect under section 44.
(2) The deed of grant in trust is cancelled to the extent of the new deed.
49 Land Court may resolve difficulties (1) If a difficulty arises in—
(a) the application of this division to a particular matter; or (b) the application, to a particular matter, of a provision of
another Act because of the operation of this division;
the Land Court may, on the application of the chief executive or an interested person, make such order as it considers proper to resolve the difficulty.
(2) An order made under subsection (1) has effect despite anything contained in this division or in an Act in force immediately before the commencement of this section.